Losing a loved one due to someone else's negligence is an overwhelming tragedy. During this emotionally devastating time, legal procedures are often the last thing families want to think about. However, understanding and avoiding critical mistakes in wrongful death claims can mean the difference between securing justice and compensation your family deserves—or losing your legal rights forever.
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At the Porter Law Group, we've seen many families make costly but avoidable mistakes due to grief, misinformation, or unfamiliarity with New York’s wrongful death laws. This comprehensive guide outlines the most common and devastating errors that can jeopardize your claim.
1. Waiting Too Long to Take Legal Action
The Most Costly Mistake of All
The Deadline: New York law imposes a strict two-year deadline from the date of death to file a wrongful death lawsuit. This deadline is absolute and unforgiving.
Why Families Wait:
- Grieving and managing funeral arrangements
- Trusting insurance companies will "do the right thing"
- Thinking they have plenty of time to decide
- Waiting to see if criminal charges are filed
- Not understanding the urgency of legal deadlines
The Devastating Consequences: Missing the statute of limitations means permanent loss of your right to compensation, regardless of how strong your case may be or how clearly someone was at fault.
Real Example: A family had overwhelming evidence that a doctor's malpractice caused their mother's death. However, they filed their lawsuit three days after the 2.5-year deadline expired. Despite the strength of their case, the court dismissed it permanently with no possibility of appeal.
How to Avoid This Mistake:
- Contact an attorney within days or weeks of your loved one's death
- Don't delay to "think about it" or "see what happens"
- Remember that consulting an attorney doesn't commit you to filing a lawsuit
- Understand that evidence disappears quickly, making early action crucial
2. Not Understanding Who Can Actually File a Wrongful Death Lawsuit
The Standing Requirement Trap
The Rule: Only the personal representative (executor or administrator) of the deceased's estate can file a wrongful death claim in New York.
Common Misconceptions:
- Thinking any family member can file the lawsuit
- Believing the surviving spouse automatically has the right to sue
- Assuming adult children can file without being appointed as personal representative
Why This Matters: Without proper legal standing, your lawsuit will be dismissed regardless of its merits.
The Process:
- Someone must be appointed as personal representative through Surrogate's Court
- This requires filing a probate petition
- The court must issue "letters testamentary" (if there's a will) or "letters of administration" (if no will)
- Only then can the wrongful death lawsuit be filed
How to Avoid This Mistake:
- Begin the estate administration process immediately
- Work with an attorney to expedite the appointment when necessary
- Resolve quickly any family disputes about who should serve as personal representative
- Don't let estate administration delays jeopardize your filing deadline
3. Missing the Notice of Claim Requirement for Government Defendants
The 90-Day Trap
The Hidden Deadline: When suing government entities, you must file a Notice of Claim within 90 days of the personal representative's appointment, in addition to the two-year lawsuit deadline.
Government Entities Include:
- Cities, towns, villages, and counties
- Public hospitals and healthcare facilities
- Transit authorities (MTA, buses, subways)
- Police departments
- Fire departments
- Public schools and universities
- State agencies
Why Families Miss This:
- Not knowing the requirement exists
- Thinking the regular two-year deadline is sufficient
- Focusing on the more obvious deadline and overlooking this critical step
The Consequence: Missing the Notice of Claim deadline permanently bars your lawsuit against the government entity, even if you file the wrongful death lawsuit within two years.
How to Avoid This Mistake:
- Identify all potential defendants immediately, including government entities
- Serve Notice of Claims promptly via certified mail
- Include all required information: date, location, circumstances, and damages sought
- If you miss the 90-day window, immediately file a motion for permission to serve a late notice
4. Accepting Early Settlement Offers Without Legal Review
The Insurance Company Ambush
The Tactic: Insurance adjusters often contact grieving families within days of a death, offering quick settlements before families consult attorneys.
Why This Happens:
- Insurance companies know that early settlements are usually much lower than full case value
- Grief-stricken families may accept inadequate offers just to "get it over with"
- Families don't understand the full extent of their losses
- The offer may seem large to families unfamiliar with wrongful death valuations
Common Problems with Early Offers:
- They rarely account for future lost earnings over a lifetime
- They don't consider the full value of services the deceased provided
- They ignore loss of parental guidance for children
- They don't account for inflation and wage growth
- They may not include all liable parties
Real Example: An insurance company offered a family $100,000 for the death of a 35-year-old teacher, claiming it was "generous." After consulting an attorney, the family learned their case was worth over $2 million in lost future earnings alone.
How to Avoid This Mistake:
- Never accept any settlement offer without consulting an experienced attorney
- Direct all insurance company communications to your lawyer
- Remember that initial offers are almost always far below actual case value
- Understand that accepting any offer waives your right to pursue additional compensation
5. Overlooking Survival Action Claims
Missing Half of Your Potential Compensation
The Distinction: New York law provides two separate types of claims:
- Wrongful Death Actions: Compensate family members for their losses
- Survival Actions: Compensate the estate for the deceased's own suffering and losses
What Survival Actions Cover:
- Pain and suffering the deceased experienced before death
- Medical expenses related to the fatal injury
- Lost wages during the period between injury and death
- Punitive damages in appropriate cases
Why Families Miss This:
- Not understanding that these are separate legal claims
- Focusing only on the wrongful death action
- Having different statutes of limitations (3 years for survival actions vs. 2 years for wrongful death)
The Impact: Survival actions can add hundreds of thousands of dollars to a case, especially when the deceased lived for weeks or months after the initial injury.
How to Avoid This Mistake:
- Work with attorneys who understand both types of claims
- File both actions together when appropriate
- Gather medical records documenting the deceased's condition between injury and death
- Don't assume that wrongful death covers all possible compensation
6. Handling Communications Without Legal Representation
Self-Sabotage Through Statements
The Risk: Anything you say to insurance adjusters, social media posts, or media interviews can be used against your case.
Common Statement Problems:
- Admitting any fault on behalf of the deceased
- Downplaying the impact of the death on the family
- Providing information about the deceased's health or lifestyle
- Making emotional statements that can be taken out of context
Social Media Dangers:
- Posts showing family activities might be used to argue limited impact
- Photos or comments about the deceased could be misinterpreted
- Even well-meaning memorial posts can create legal problems
How to Avoid This Mistake:
- Let your attorney handle all communications with insurance companies
- Refer all media inquiries to your lawyer
- Be extremely careful about social media posts
- Educate all family members about the importance of controlled communications
7. Failing to Preserve Critical Evidence
The Disappearing Proof Problem
Evidence That Disappears Quickly:
- Surveillance camera footage (often deleted after 30-90 days)
- Vehicle event data recorders (EDRs) and "black boxes"
- Cell phone records showing texting or calling while driving
- Medical equipment maintenance records
- Workplace safety logs and inspection reports
- Weather and traffic condition data
Why Evidence Gets Lost:
- Families don't know what evidence exists
- No one takes immediate action to preserve it
- Companies routinely destroy records after short periods
- Accident scenes are cleaned up and changed
The Impact: Lost evidence can make it impossible to prove your case, even when negligence clearly occurred.
How to Avoid This Mistake:
- Contact an attorney immediately after the death
- Take photographs of accident scenes, vehicles, and conditions
- Identify and contact witnesses while memories are fresh
- Have your attorney send preservation letters to all potential defendants
- Act quickly—evidence disappears faster than you might think
8. Ignoring Comparative Negligence Issues
When the Defense Blames the Victim
New York's Comparative Negligence Rule: If the deceased contributed to their own death, damages can be reduced by their percentage of fault.
Common Defense Arguments:
- The deceased wasn't wearing a seatbelt
- The deceased was speeding or driving carelessly
- The deceased ignored safety warnings or procedures
- The deceased had been drinking or using drugs
- The deceased didn't follow medical advice
Why This Matters: Even if the deceased was only 20% at fault, your damages are reduced by 20%. In a $1 million case, that's a $200,000 reduction.
How to Avoid This Mistake:
- Gather evidence showing the deceased acted reasonably
- Document any safety training or compliance history
- Challenge unfair characterizations of the deceased's conduct
- Work with experts who can refute fault allegations
- Present evidence of the defendant's gross negligence
9. Misunderstanding What Damages Are Available
The New York Limitation Problem
What You CAN Recover:
- Lost future earnings and benefits
- Medical expenses before death
- Funeral and burial costs
- Value of services the deceased provided
- Loss of parental guidance for children (economic value only)
What You CANNOT Recover:
- Grief, sorrow, or emotional suffering of survivors
- Loss of companionship or consortium
- Mental anguish of family members
- Pain and suffering of survivors
Why This Matters: Families often expect compensation for emotional losses and are disappointed when they learn about New York's restrictions.
How to Avoid This Mistake:
- Understand the limitations before filing your case
- Maximize economic damages with proper documentation
- Consider survival actions for the deceased's pain and suffering
- Work with economists to properly calculate future earnings
- Stay informed about potential legislative changes
10. Family Conflicts That Derail Cases
When Grief Divides Families
Common Sources of Conflict:
- Who should serve as personal representative
- Whether to accept settlement offers
- How to distribute any recovery
- Which attorney to hire
- Disagreements about the deceased's earning capacity
How Conflicts Hurt Cases:
- Delays in appointing personal representatives
- Missed filing deadlines due to family disputes
- Weakened negotiating position with defendants
- Court-ordered mediation that delays resolution
- Forced acceptance of lower settlements
Real Example: A family spent 18 months fighting over who should be the personal representative. By the time they resolved the dispute, the statute of limitations had expired, and they lost a strong $3 million case.
How to Avoid This Mistake:
- Address conflicts quickly through family meetings
- Use mediation when necessary to resolve disputes
- Consider appointing a neutral third party as personal representative
- Focus on the common goal of obtaining justice
- Don't let personal grievances override legal deadlines
Additional Critical Mistakes to Avoid
Not Hiring Experienced Wrongful Death Counsel
The Risk: Wrongful death cases involve complex legal, medical, and economic issues that require specialized expertise.
Why General Practice Isn't Enough:
- Wrongful death law has unique procedural requirements
- Economic damage calculations require specialized knowledge
- Medical malpractice cases need specific expertise
- Insurance companies use experienced defense attorneys
Choosing Attorneys Based Solely on Advertising
Red Flags:
- Promises of specific monetary outcomes
- High-pressure sales tactics
- Unwillingness to explain their experience with wrongful death cases
- No track record of successful wrongful death verdicts or settlements
Not Considering All Potential Defendants
Often Overlooked Defendants:
- Employers who failed to provide safe working conditions
- Property owners responsible for dangerous conditions
- Manufacturers of defective products
- Government entities responsible for road maintenance
- Healthcare facilities in addition to individual doctors
Lost A Loved One Because Of Someone's Negligence?
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Why Choose the Porter Law Group for Your New York Wrongful Death Case?
The lawyers at the Porter Law Group have decades of experience representing individuals and families whose lives have been devastated by catastrophic injuries. We have obtained some of the largest settlements and verdicts in courts throughout the State of New York. We are a state-wide firm that handles cases with a hometown feel.
Our clients come to us looking for guidance and answers. With seasoned trial lawyers, the Porter Law Group has the resources necessary to help you navigate the most complex cases, against goliath insurance companies that will stop at nothing to prevent you from receiving the compensation you deserve.
You only get one chance to hire the best lawyer for you and your family. Hire the lawyers most recommended by former clients and local attorneys, and the firm that obtains superior results.
When you or a loved one’s life has been devastated by a serious personal injury in New York, don’t hire a lawyer without calling the Porter Law Group to learn why so many of our clients are thankful they trusted us with their case in their time of need.
Contact a New York Wrongful Death Attorney Today
If you've lost a loved one due to someone else's negligence, don't let avoidable mistakes jeopardize your family's right to justice and compensation. Contact the Porter Law Group immediately for a free, no-obligation consultation. Call us at 833-PORTER9 or email info@porterlawteam.com.
We have the experience, resources, and dedication needed to help your family avoid these costly mistakes while pursuing the maximum compensation available under New York law. Don't wait—your family's future may depend on the actions you take today.
Every day that passes without legal representation increases the risk of making irreversible mistakes. Contact us now to protect your rights and honor your loved one's memory through the pursuit of justice.
